Washington, DC (January 25, 2023) – Senior Judge William B. Shubb of the U.S. District Court for the Eastern District of California today granted NCLA’s motion for preliminary injunction in Høeg, et al. v. Newsom, et al. He held that plaintiffs have standing to bring a legal challenge, and enjoined implementation of Assembly Bill (AB) 2098 in California. The controversial state law empowered the Medical Board of California to discipline physicians who “disseminate” information regarding Covid-19 that departs from the “contemporary scientific consensus.” Judge Shubb stated that “the ‘contemporary scientific consensus’ lacks an established meaning within the medical community,” and thus, because the “scientific consensus” is so ill-defined and vague, the physician plaintiffs in the lawsuit are “unable to determine if their intended conduct contradicts the scientific consensus, and accordingly ‘what is prohibited by the law.’”
The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, represents five physicians licensed by the Medical Board of California. Drs. Høeg, Duriseti, Kheriaty, Mazolewski, and Khatibi alleged violations of their First Amendment rights to free speech and expression and their Fourteenth Amendment rights to due process of law. At oral argument on Monday, January 23, NCLA argued the term “contemporary scientific consensus” is undefined in the law and undefinable as a matter of logic. No one can know, at any given time, the “consensus” of doctors and scientists on various matters related to the prevention and treatment of Covid-19. Judge Shubb agreed with this analysis, stating, “COVID-19 is such a new and evolving area of scientific study, it may be hard to determine which scientific conclusions are ‘false’ at a given point in time.” Because he ruled in favor of Plaintiffs’ Fourteenth Amendment arguments, he did not reach the First Amendment arguments.